from the snowden-effect dept

Today, the European Parliament held a three-hour long debate on PRISM, Tempora and what the EU response should be. Many wanted TAFTA/TTIP put on hold; others didn't. But one theme cropped up again and again: the need for strong data protection laws that would offer at least some legal protection against massive and unregulated transfer of Europeans' personal data to the US.

As Techdirt readers may recall, the EU's Data Protection Regulation was already contentious even before Ed Snowden revealed the scale of US and UK spying on EU citizens. The new focus on passing it soon only intensifies the battle going on there between those who want to introduce meaningful constraints on what can be done with EU data, and those who seem happier to listen to lobbyists and allow personal information to flow across the Atlantic largely unchecked. But it looks like the politicians have come up with a way to avoid public debate on the matter, as Monica Horten at Iptegrity.com reports:

Secret trilogue negotiations between the European Parliament and the Council of Ministers are being proposed as a way to get around the impasse of 3000+ amendments on the Data Protection Regulation.

As Horten explains:

trilogues are held in secret, behind closed doors, and the only people allowed in are the rapporteur [the lead MEP representing the European Parliament] and his shadows, the Commissioner, the Presidency, and selected advisers from each institution. The trilogue discussions are not made public.

As well as being reprehensible -- if anything needed to be conducted in public, this did -- it may be against the EU's own rules:

trilogues cannot start before the responsible committee has given a mandate. That's what's a little bit odd here. The mandate can only be given when the committee votes in October.

But the Brussels rumour mill is suggesting that there could be a move to begin trilogues on the Data Protection Regulation before October, without waiting for the committee mandate.

That might solve the problem of avoiding high-profile arguments over what should be in the Regulation, but it would also place anything that comes out of these secret negotiations on a questionable footing:

it would be a breach of Parliamentary process, and especially egregious given that this law deals with fundamental rights.

In any event, the rapporteur does not have to agree to trilogues. It is an option.

In other words, nobody really knows what will happen here. Call it the Snowden Effect: anything relating even indirectly to his case seems to become more complex and unpredictable....

from the keystone-kops dept

Early on, we pointed out that the legal theories behind the shutting down of Megaupload and the arrest of its founders were highly questionable. And since then, we've seen that it wasn't just the legal theories that were problematic, but nearly everything about the case, including a bunch of procedural issues. There's been lost evidence and plans to destroy evidence. There have been procedural errors that knocked out a restraining order for being improperly filed, as well as the failure to properly serve the company, which may lead the case against the company (but not the individuals) to be dropped entirely. On top of that, the US has been acting as this is all pretty straightforward, but have already been surprised to discover that the New Zealand government won't simply rubberstamp the extradition.

The latest update may create an even bigger headache for the US in its crusade against Kim Dotcom and Megaupload. High Court judge Helen Winkelmann has ruled that the search warrants used to seize Kim Dotcom's property... were illegal. Yeah, that's going to present a problem for the US. She also ruled that the FBI broke the law in taking data from Dotcom's computers out of the country. But the illegal warrants are the big deal here:

She said the search warrants were invalid because they were general warrants which lacked specificity about the offence and the scope of the items to be searched for.

Without a valid warrant, police were trespassing and exceeded what they were lawfully authorised to do.

Justice Winkelmann said no one had addressed whether police conduct also amounted to unreasonable search and seizure, but her preliminary view was that it did.

In other words, it's not only entirely possible that the government won't even be able to use anything from what they seized in a case, but they may, themselves, be in trouble for breaking the law and violating Dotcom's privacy rights.

The specific problem? The warrant did not actually state what US laws were supposedly broken -- which is kind of important, especially since this was about a case in the US and a person in New Zealand. If it's not made clear that the warrant is under US laws, then it "would no doubt cause confusion to the subjects of the searches...they would likely read the warrants as authorising a search for evidence of offences as defined by New Zealand law."

So not only do we have a weak case, the whole process in the case has been a complete joke and may mean that the US is unable to use much of the evidence it collected, can't extradite Dotcom and... has little actual basis to move forward with a lawsuit. Honestly, I'm somewhat amazed at the number of mistakes by the feds in such a case. It increasingly feels like they did this because they felt the need to "do something" right after the effort to pass SOPA and PIPA stalled out -- and in their rush to make Hollywood like them again, the feds didn't bother to actually pay much attention to the details. Sometimes it's "creative" to color outside the lines. At other times, it's called cooking up a case on trumped up charges for political reasons.

from the not-this-again dept

Back in April, we wrote about the TSA defending its groping of a 6-year-old girl, by saying that it was fine because it was their standard operating procedure. That, of course, made absolutely no sense to anyone outside of the TSA. Just because it's the way you normally do things doesn't make it right. At all. In fact, even the TSA's boss seemed to acknowledge last week that groping 6-year-olds is no longer standard operating procedure in most cases.

Perhaps he can now turn his attention to groping 95-year-olds.

Yes, over the weekend a lot of people heard about the story of Jean Weber's 95-year-old mother, who is in the final stages of leukemia, and wanted to travel to Michigan from Florida, to spend her few remaining days with family. Except, once she got to the airport, she was apparently selected for extra scrutiny, including a patdown, and being told she needed to remove her adult diaper. She ended up being detained for 45 minutes.

The local TSA spokesperson defended the procedure by suggesting that if they didn't grope 95-year-old dying cancer patients and force them to remove their diapers, that the terrorists would plant bombs on such old ladies:

"TSA cannot exempt any group from screening because we know from intelligence that there are terrorists out there that would then exploit that vulnerability."

But that's just the TSA spokesperson in Miami. Surely once this made its way back up to the top, the TSA folks in DC wouldn't go through the same mistake from April and claim this is perfectly fine because it's standard operating procedures... or would they? Oh, of course they would:

The TSA released a statement Sunday defending its agents' actions at the Northwest Florida Regional Airport.

"While every person and item must be screened before entering the secure boarding area, TSA works with passengers to resolve security alarms in a respectful and sensitive manner," the federal agency said. "We have reviewed the circumstances involving this screening and determined that our officers acted professionally and according to proper procedure."

You know what? If that is "proper procedure," the procedure is wrong. It's time for someone at the TSA to admit that.

from the open-things-up dept

We've had a series of posts debunking all of the bogus claims from supporters of ACTA and the current secrecy involved in the ACTA process -- such as how this secrecy is "normal" (no its not), how this is "just an executive agreement, not a treaty" (the difference is effectively meaningless) and how this can't change US law so there's nothing to worry about (even if it doesn't change US law directly, it can prevent fixing problems in the law, while putting pressure on legislators to change the law anyway). Well, here's another one, courtesy of the folks over at Public Knowledge.

One of the claims that's been made in defense of the "secrecy" around ACTA is that the agreement is really just about "enforcement," rather than any legal changes. While we've already questioned how true that claim really is, John Bergmayer, does a nice job explaining why we should be worried about an agreement on "enforcement" anyway: because the question of enforcement is meaningless compared to the actual procedure of enforcement. Bergmayer quotes Rep. John Dingell to make the point:

"I'll let you write the substance ... you let me write the procedure, and I'll screw you every time."

The fear here is that while ACTA might not technically change US law, it could easily change US procedures and policies on "enforcement" allowing the effective change in the law, without people even realizing it. He quotes Professor Thomas Main, saying:

"procedural reforms can have the effect of denying substantive rights without the transparency, safeguards and accountability that attend public and legislative decision-making."

And, indeed, this is what we've see in the leaked drafts of ACTA. While most (though, certainly not all) of the proposals that have been leaked don't necessarily include a direct change to US law, they often do subtly word things so that existing rights, safeguards and accountability are left out, just as Prof. Main warns. To make sure those subtle changes do not have serious impacts that let certain special interests (in the words of Rep. Dingell) "screw" the public, doesn't it make sense to reveal the contents of what's being negotiated?